Synopsis

In a claim for breach of contract defendant's motion for summary judgment was granted
to the extent claimant sought payment beyond the contract price for work which was required to
be performed by the plain terms of the contract. In addition, claimant failed to comply with
notice and record-keeping provisions of contract in certain respects.

Decision

The defendant, New York State Thruway Authority, entered into a contract (the "Contract")
with claimant, Phoenix Signal and Electric Corp., for the installation of variable message signs and
closed circuit television cameras at various locations along the New York State Thruway in Ulster,
Rockland, and Westchester Counties. Work under the Contract was required to be performed in
accordance with the New York State Department of Transportation Standard Specifications (see
defendant's Exhibit D, Contract, Article 1).

Claimant seeks compensation for work which it alleges was either not required by the
Contract or unforeseen at the time the Contract was entered into. The first cause of action asserted
in the claim seeks $434,280.26 for additional work performed as the result of the defendant's
directive prohibiting the use of stay-in-place corrugated metal pipe, which claimant contends was
not required by the Contract specifications and contrary to standard industry practices (the CMP
Claim). The claim alleges the following in this regard:

"15. In connection with standard practice in meeting such Contract
requirements and what Claimant anticipated in forming its bid for the
Contract, Claimant chose to use stay in place 42 inch diameter corrugated
metal pipes with controlled backfill alongside including concrete that would
flow down alongside the metal pipes, with the upper preformed portion of the
foundation being in place for the monolithic pour as called for by the
Contract.

16. The Contractor had the right to select and use the means and methods of
construction and the materials to meet the requirements of the Contract.

17. After one such stay in place 42 inch diameter corrugated metal pipe was
in place, without objection by the field personnel including the Engineer in
Charge, a higher level Thruway Authority person required that the stay in
place 42 inch diameter corrugated metal pipe be removed and an entirely
different method of forming the foundation be used.

18. When the Thruway Authority interfered with such contractor's right
and/or with the performance of the Contract work, it breached the Contract"
(defendant's Exhibit A, Claim, ¶¶ 15-18).

The second cause of action seeks compensation for additional work performed on the
construction of a median barrier at location V-4 to accommodate a drainage structure not reflected
on the plans (the Median Barrier Claim). The Claim alleges the following:

"30. There was a substantial design error in the Contract Documents relative to a
drainage structure, a catch basin, in the median at location V-4 that was neither
shown on the plans nor anticipated to be there.

31. In order for the Claimant to accommodate this unforeseen drainage structure and
still build the median barrier and not create a traffic hazard it was required that all
four (4) legs of the median barrier be hand formed by crews building wood forms in
place rather than using pre-cast barriers" (defendant's Exhibit A, claim, ¶¶ 30 and
31).

The third cause of action seeks compensation for work performed in connection with the
foundation footings at location V-4, which allegedly required the unforeseen removal of rock and
additional concrete backfill (the Blasted Rock Claim). Claimant seeks a total of $85,745.26 on both
its second and third causes of action.

With regard to the merits of the CMP claim, defendant contends that the contract
specifications governing the construction of the concrete foundations for the overhead sign
structures required the removal of any casing prior to placement of concrete in the drilled foundation
holes. As a result, defendant contends that the claimant's performance of the work in accordance
with this specification forms no basis for a breach of contract claim. In support of this contention,
defendant submits a copy of the contract's Standard Specifications and an affidavit from Dianne
Denniston. Under the subheading entitled "Drilled Shafts for Overhead Sign Structures", the
specifications state the following:

"Holes for drilled shafts shall be pre-augered. Precaution shall be taken to protect the
holes from collapse. Holes shall contain no free water, nor any loose material at the
time of concrete placement. The holes shall be filled with Class A concrete placed
in direct contact with the soil. Casing, if used, shall be removed prior to concrete
placement. Precast shafts shall not be permitted" (defendant's Exhibit C, Proposal,
amending § 644-3.05 [A] of the Standard Specifications, p. 119 [emphasis added]).(1)

Ms. Denniston is a licensed professional engineer employed by the defendant as a Civil
Engineer II in the Bureau of Canal Design. She first became involved with this project when she was
contacted by Herb Litts, an Assistant Division Director of Engineering Services, regarding an
obstruction encountered during drilling at the VMS # 4 footing. During the course of this
conversation, she learned that the claimant "intended to leave the casing [for the overhead sign
structures] in place after the concrete was poured and fill in the annular space around the outside
of the casing with flowable fill" (defendant's Exhibit O, ¶ 4). She advised Mr. Litts that such a
procedure was prohibited by § 644 of the Standard Specifications.

Ms. Denniston explains in her affidavit that "leaving the casing in place, even when the
annular space is filled, does not allow the fluid pressure from the concrete to press out against the
sides of the drill hole and fully develop the skin friction, which is necessary to resist the applied
compressive and uplift forces" (defendant's Exhibit O, ¶ 5). Following the initial rejection of the
claimant's stay-in-place casing methodology, Ms. Denniston received a proposal from the claimant,
prepared by John S. Deerkoski, P.E., detailing an alternative procedure utilizing a drilled shaft
foundation with a corrugated casing which would remain in place permanently (defendant's Exhibits
O, ¶ 6 and O-4). Mr. Deerkoski acknowledged in his report that while "not literally meeting the
requirements of the standard, it meets or exceeds the intent of the standard specifications"
(defendant's Exhibit O-4). Ms. Denniston rejected the proposal as it did not adequately address
certain safety issues, indicating that "[a]ny re-submittal must demonstrate that 20.5 tons of skin
friction resistance for uplift is achieved" (defendant's Exhibit O-5). Thereafter Ms. Denniston
approved the claimant's proposal for using "a two stage pour to construct the drilled shaft foundation
without a full-length permanent casing being left in place below grade" (defendant's Exhibit O, ¶
8). It is this work for which the claimant seeks additional compensation.

In the Court's view, defendant established its prima facie entitlement to summary judgment
dismissing the claimant's first cause of action (Zuckerman v City of New York, 49 NY2d 557
[1980]). Both the plain language of the contract's Standard Specifications as well as the affidavit
of Dianne Denniston establish that the claimant's proposed use of a stay-in-place corrugated metal
pipe violated the contract's specifications. Section 644-3.05 (A) of the Standard Specifications
clearly required that the concrete placed in the drilled foundation holes be in "direct contact with the
soil" and that "[c]asing, if used, shall be removed prior to concrete placement" (defendant's Exhibit
C, p. 119). Claimant's proposed procedure would have violated this specification, as recognized by
claimant's consulting engineer, Mr. Deerkoski. As a result, claimant's performance of the work in
compliance with the contract specifications forms no basis for either a breach of contract or extra
work claim.(2)

In opposition to this branch of the defendant's motion claimant contends that the relevant
contract plan, which takes precedence over the contract Standard Specifications (Exhibit E, Standard
Specifications, § 102-04, p. 1-12), limits the prohibition against stay-in-place casing to the drilling
of rock. Specifically, claimant's counsel argues that "Note 6 on Sheet 20 of the Plans limited such
removal to only rock pouring situations" (affirmation of Darrell W. Harp, ¶ 16). The portion of the
Contract plans entitled "VMS Foundation Details" includes Note 6 which states the following:

"6. Any drilling of rock for shaft foundations shall be performed from the existing
earth surface through the auger hole formed during the drilling operation. Casing,
if used, shall be removed prior to placing shaft concrete" (claimant's Exhibit 1, plan
20 of 64, drawing no. SD-3).

This note is consistent with the requirement set forth in the Standard Specifications for drilled
shaft foundations that "[c]asing, if used, shall be removed prior to concrete placement" (defendant's
Exhibit C, p. 119). The order-of-precedence clause, relied upon by the claimant for a contrary
conclusion, states:

"The following components of the contract documents complement one another in
this declining order of precedence; plans, proposal, specifications, and then base line
data. The intent of the contract documents is to include all items/aspects of the work
that are necessary for the proper initiation, execution, and completion of the work .
. ." (defendant's Exhibit E, § 102-04 [B], p. 1-12).

The order-of-precedence clause makes clear that the contract documents are intended to
complement each other in order to include all aspects of the work. Claimant's interpretation of the
contract would require the conclusion that the plan notes, which do not purport to be a complete
rendition of the contract's specifications, supersede a provision of the Standard Specifications (§
644-3.05 [A]) specifically applicable, without limitation, to the "layout and construction of Drilled
Shaft foundations for Overhead Sign Structures." Such a conclusion is not only at odds with the
plain language of the order-of-precedence clause, but contrary to well-settled principles of contract
law requiring that courts give full meaning and effect to the material provisions of a contract while,
to the extent possible, giving effect to its general purpose (Beal Sav. Bank v Sommer, 8 NY3d 318,
324-325 [2007]; Queens Best, LLC v Brazal S. Holdings, LLC, 35 AD3d 695 [2006]; First Fed. Sav.
& Loan Assn. of Rochester v Minkoff, 176 AD2d 1049 [1991]). "It is a cardinal rule of construction
that a court should not adopt an interpretation which will operate to leave a provision of a contract
. . . without force and effect" (Corhill Corp. v S.D. Plants, Inc., 9 NY2d 595, 599 [1961] [internal
quotation marks and citations omitted]). Claimant's proposed application of the order-of-precedence
clause would render meaningless the Standard Specifications without giving effect to the general
purpose of the contract. Accordingly, claimant's performance of the work in compliance with the
Standard Specifications of the contract provides no basis for a breach of contract or extra work
claim. Claimant's first cause of action is therefore meritless as a matter of law.

Defendant also contends that the claimant's failure to comply with the notice and reporting
requirements of the contract applicable to claims for extra work requires dismissal of the claim. In
support of this branch of its motion, defendant submitted the affidavit of Timothy X. Shaw, the
Engineer-in-Charge of the project, in which he avers that although the claimant provided timely
notice and daily summaries for the work performed in connection with the Blasted Rock Claim, it
failed to provide timely notice and documentation of the force account work performed in connection
with both the CMP and the Median Barrier claims (the first and second causes of action). Mr. Shaw
states the following with respect to the CMP Claim:

"At no time during the pouring of the foundations did [claimant] provide the
[defendant] with written notice that it considered the work as disputed work
or extra work. Furthermore, during the course of the work, no daily
summaries of force account work were submitted to me or any other
[Thruway Authority] representative to confirm labor, materials and
equipment used. . . The paper work concerning such foundation was not
delivered to the [Thruway Authority] until almost one year later. On August
18, 2006, Allen Goldberg stopped by the field office and left off 'a claim' for
the VMS foundation. This package consisted of a Force Account Summation
for the amount of $434,280.87 and various documents in support of this
claimed amount (defendant's Exhibit Q, affidavit of Timothy X. Shaw, ¶¶
7, 8).

With respect to the Median Barrier Claim, Mr. Shaw states that "[t]he paperwork, including
daily summaries, were not delivered to the [Thruway Authority] until almost one year later, when
on August 29, 2006 Alan [sic] Goldberg stopped by and dropped off another claim related to the
median barrier at V-4" (defendant's Exhibit Q, affidavit of Timothy X. Shaw, ¶ 11).

The Contract's Standard Specifications contain disputed work provisions requiring both
prompt notice of a claim for extra work and that the contractor "keep daily records and make reports
of all labor, material and equipment used in connection with such work and the cost thereof as
specified in § 109-05 (C), Force Account Reports" (defendant's Exhibit E, Standard Specifications,
§ 105-14 [C], p. 1-73). Notice of a claim for extra work must be provided to the Engineer within
ten work days of receipt of the order or direction to perform the work (defendant's Exhibit E, §105-14 [C]) and copies "shall also be provided to the Director, Office of Contracts and Construction
Management and to the Office of the Director, Department of Engineering Services" (defendant's
Exhibit C, Proposal, Addendum No. TA (03), p. 26). Pursuant to § 109-05 (C) (1), payment for
disputed work is based upon daily summaries provided by the contractor to the Engineer-in-Charge
"not later than closing time on the day following that for which the work is reported" (defendant's
Exhibit E, Standard Specifications, p. 1-116). The daily summaries are required to contain a
detailed list of materials, equipment and personnel utilized in performing the work as well as a
statement or description of the work accomplished for the day (id.). This section also requires that
the daily summaries shall be "dated and signed by the Contractor's authorized representative and the
Engineer-in-Charge" (defendant's Exhibit E, § 109-05 [C] [1] [e]).

In addition to the daily summaries, the Contractor is required to provide a Force Account
Summary of Labor to the Engineer-in-Charge"[w]ithin 5 calendar days after the end of each pay
period" (defendant's Exhibit E, Standard Specifications, § 109-05 [C] [2], p. 1-117). A Force
Account Summation, dated and signed by the Contractor's authorized representative and the
Engineer-in-Charge, is required to be provided to the Engineer-in-Charge within ten calendar days
of completion of the force account work (defendant's Exhibit E, Standard Specifications, § 109-05
[C] [3], p. 1-117). The Contract contains the following provisions with respect to the notice and
record-keeping requirements of the Contract:

"The notification and record-keeping provisions in this Contract shall be
strictly complied with for disputes of any nature and are a condition precedent
to any recovery. This affords the Department the opportunity to initiate
measures that will mitigate damages to all parties and/or to agree to terms and
conditions for timely payment for any eligible added costs. . . If the
Contractor fails to strictly comply with either the notification or the record
keeping provisions of this section, any claim of the Contractor with respect
thereto shall be deemed waived" (defendant's Exhibit E, § 105-14, p. 1-70).

The disputed work provisions contained in § 105-14 (C) reiterate that "[f]ailure by the
Contractor to promptly notify, in writing, the Engineer, the [Thruway Division Director](3), and the
Commissioner of its contentions relative to any dispute or to maintain and furnish force account
reports for disputed work shall constitute a waiver of the disputed work" (defendant's Exhibit E, p.
1-73).

The Standard Specifications make clear that compliance with the notification and record-keeping requirements of the Contract are a condition precedent to a claim for extra work (seeA.H.A.
Gen. Constr. v New York City Hous. Auth., 92 NY2d 20 [1998]). "Failure to strictly comply with
such provisions generally constitutes waiver of a claim for additional compensation" (Fahs Rolston
Paving Corp. v County of Chemung, 43 AD3d 1192, 1194 [2007]; see also Kingsley Arms, Inc. v
Sano Rubin Constr. Co., Inc., 16 AD3d 813 [2005]; Promo-Pro Ltd. v Lehrer McGovern Bovis, 306
AD2d 221 [2003]; Sicoli & Massaro v Niagara Falls Hous. Auth., 281 AD2d 966 [2001]; F.
Garofalo Elec. Co. v New York Univ., 270 AD2d 76 [2000]). " '[C]ompliance with the notice of
claim provisions of a . . . contract constitutes a condition precedent to the commencement of an
action for breach of contract which may only be avoided if the municipality acted in a manner that
precluded the other party from complying' " (Marcor Remediation, Inc. v County of Broome, 46
AD3d 1066, 1068 [2007], quoting Tug Hill Constr. v County of Broome, 270 AD2d 755, 756
[2000]). The notice and record-keeping provisions of public works contracts serve the salutary
purpose of providing "public agencies with timely notice of deviations from budgeted expenditures
or of any supposed malfeasance, and allow them to take early steps to avoid extra or unnecessary
expense, make any necessary adjustments, mitigate damages and avoid the waste of public funds"
(A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d at 34; see alsoHuff Enters. v
Triborough Bridge & Tunnel Auth., 191 AD2d 314, 316 [1993], lv denied 82 NY2d 655 [1993]).

Defendant established through the affidavit of Timothy X. Shaw that claimant failed to
comply with the notice and reporting provisions of the Contract for the work performed in
connection with both the CMP Claim and the Median Barrier Claim. According to Mr. Shaw,
summaries of force account work performed relative to both claims were not submitted until
approximately one year following completion of the work. Moreover, most of the force account
reports submitted with respect to these claims were undated by the claimant's representative and/or
unsigned by the Engineer-in-Charge (see defendant's Exhibit M). The Court finds here, as it did in
Liberty Maintenance v State of New York (UID No. 2010-015-108, Claim No. 115228 [Ct Cl,
February 11, 2010])(4), that "[b]oth the clear and unambiguous contract language requiring strict
compliance as well as the public policy interest in mitigating damages and conserving the public fisc
support the conclusion that claimant's failure to strictly comply with the force account reporting
requirements constitutes a failure to comply with a condition precedent to suit." Defendant having
established its entitlement to summary judgment dismissing both the CMP Claim and the Median
Barrier Claim (claimant's first and second causes of action), the burden shifted to the claimant to
raise a triable question of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). This it
failed to do.

In opposition to the defendant's motion, claimant contends that the instant claims are
controlled by § 109-16 (A) of the Standard Specifications. This section, entitled "Changed
Conditions and Delay Provisions", sets forth four situations in which a claim for additional
compensation "caused by delay or interference affecting the performance or the scheduling of
contract work" may be made:

"1. different site conditions;

2. suspension of work . . .

3. significant changes in the character of the work; and

4. situations not referenced in subsection B and which are not within the
contemplation of the parties at the time of entering into the contract."

Claimant's counsel argues that both the CMP and Median Barrier claims fall within the
fourth category set forth above which "does not have any such provisions requiring notice or
recordkeeping" (affirmation of Darrell W. Harp, ¶ 12). Claimant's counsel apparently overlooked
the very next paragraph:

"In addition, these aforementioned provisions may also form the basis for
extra work compensation pursuant to § 105-14 and § 109-05 . . . In all such
instances, for any claim asserted under this section, the Contractor shall keep
detailed written records of the costs and agrees to make them available to the
Department at any time for purposes of audit and review.

Any dispute relating to such claims shall promptly be submitted to the
Engineer in writing, pursuant to the notice provisions of the contract. Failure
by the Contractor to notify the Engineer in writing pursuant to the provisions
of this contract, or to maintain and furnish cost records of such claims, shall
constitute a waiver of the claim" (defendant's Exhibit E, Standard
Specifications, § 109-16, p. 1-123)

The explicit reference to both the record-keeping provisions of § 109-05 and the disputed
work provisions of § 105-14, including those relating to notice and waiver of a claim for
noncompliance, leaves no doubt that compliance with the notice and reporting requirements of §105-14 and §109-05 (C) was required. Importantly, the Standard Specifications state explicitly that work
described in § 109-16 must comply with the notice provisions contained in § 105-14 (C) and the
reporting requirements of § 109-05 (C), stating:

"This subsection shall cover all such applicable work under § 109-16. During the
progress of such disputed work, the Contractor and Engineer shall keep daily records
and make reports of all labor, material and equipment used in connection with such
work and the cost thereof as specified in § 109-05C, Force Account Reports"
(defendant's Exhibit E, §105-14).

Accordingly, claims for extra work under § 109-16 (A) (4) are clearly controlled by the notice
and record-keeping provisions of §105-14 and § 109-05. Notice of the claim and detailed
summaries of the work were therefore required to be provided as set forth therein.

Claimant also relies on § 104-03 for the proposition that an order-on-contract was required
to trigger the notice and record-keeping provisions of § 105-14 and § 109-05. This contention is,
once again, belied by the plain language of this section:

"Contractor may proceed with the work in advance of the approved order-on-contract
if the Contractor has received an approved Authorization of Additional Work from
the Construction Division. Otherwise, payment for any unforeseen work shall be
made only if the contractor complies or has complied with all of the provisions of §
105-14, § 109-05 and § 109-16 as applicable" (defendant's Exhibit E, Standard
Specifications, § 104-03, p. 1-54 [emphasis added]).

Absent an approved authorization for additional work, therefore, compliance with the notice
and reporting requirements of §§ 105-14, 109-05 and 109-16 was required.

Claimant argues alternatively that it complied with the notice and reporting requirements of
§ 105-14 and § 109-05. Claimant first argues that it complied with any applicable notice provisions
for all three claims. With respect to the Blasted Rock Claim (claimant's third cause of action) there
is no dispute that notice of the claim and daily summaries of the work performed on July 13, 2005
and July 14, 2005 were timely provided on July 15, 2005 (defendant's Exhibit N). With respect to
the CMP Claim (first cause of action), claimant points to an undated letter from Timothy X. Shaw
acknowledging claimant's August 1, 2005 inquiry regarding what Mr. Shaw describes as a delay
claim related to the VMS footings (see claimant's Exhibit 5). A delay claim is not a claim for extra
work and, for that reason, the letter from Mr. Shaw fails to support claimant's contention that
defendant was provided notice of the CMP Claim. In this regard, the Court notes the claimant failed
to provide a copy of Allen Goldberg's correspondence of August 1, 2005. It was this correspondence
which Mr. Shaw was responding to in his letter submitted as claimant's Exhibit 5. If, as claimant
alleges, Mr. Goldberg's correspondence provided the defendant notice of a potential claim for extra
work in connection with the CMP claim, the Goldberg letter, and not Mr. Shaw's response, should
have been submitted in support of its contention. Moreover, there is no indication that copies of any
such notice were provided to "the Director, Office of Contracts and Construction Management and
to the Office of the Director, Department of Engineering Services" as required by the Contract
specifications (see defendant's Exhibit C, Proposal, Addendum No. TA [03], p. 26).

With respect to the Median Barrier Claim (second cause of action), claimant contends that
notice was acknowledged by defendant when the design errors were discovered. However, as
pointed out by Martin F. White, Civil Engineer III in the Office of Construction Management,
"[a]cknowledgment of a design error does not mean the [Thruway Authority] has been put on notice
of a dispute. All design errors do not automatically result in the contractor seeking additional
compensation. Sometimes, as in this case, there are no additional costs associated with the necessary
change. If this was properly disputed with contemporaneous cost records, we may have found that
the shortening of the barrier cost less . . ." (Affidavit of Martin F. White sworn to May 18, 2010, ¶
17). Accordingly, claimant failed to refute defendant's prima facie showing that timely notice of
a claim for extra work was not provided in connection with both the CMP and Median Barrier
Claims.

In support of its assertion that the reporting requirements of § 105-14 and § 109-05 were
satisfied, claimant submits the affidavit of Allen Goldberg who states that he was "in charge of the
Project on behalf of Claimant, Phoenix Signal and Electric Corp." (claimant's Exhibit 12, ¶ 2). In
his affidavit Mr. Goldberg states that he prepared daily summaries of extra work performed by
Phoenix on MURK 11 forms and that Mr. Betanzos and the other inspectors refused to sign them
"based on Defendant's position that there was no 'disputed work or extra work' involved . . ."
(claimant's Exhibit 12, ¶ 11). Mr. Goldberg also avers that MURK 11 forms were submitted
"throughout the performance of work relative to Claims 1 and 2 to the Project Office even though
they were not signed by the inspector in charge. . . I also submitted a copy of the M.U.R.K. 111 [sic]
Forms to Claimant's Office" (claimant's Exhibit 12, ¶¶ 12 & 13).

First, Mr. Goldberg's assertion that Mr. Betanzos and the other inspectors refused to sign
the daily summaries of extra work overlooks the fact that the forms were required to be signed by
Mr. Shaw, the Engineer-in-Charge (see defendant's Exhibit E, Standard Specifications § 109-05 [C]
[1] [e]). Second, Mr. Goldberg's assertion that he submitted daily summaries of work relative to
claims 1 and 2 to the "Project Office" also fails to demonstrate compliance with the requirement that
notice be provided to the Engineer-in-Charge. "Project Office" is not defined in the Standard
Specifications and Mr. Goldberg offered no explanation of the meaning of the term in his affidavit.
Nor does his affidavit testimony establish that daily summaries were provided "not later than closing
time on the day following that for which the work is reported" as required by § 109-05 (C) (1).
Lastly, and perhaps most significantly, Mr. Goldberg's assertion that he submitted daily summaries
to the "Project Office" throughout the performance of the work is belied by his examination before
trial testimony in which he stated that on those occasions when an inspector refused to sign a MURK
11 form "I took the original, gave it back into the office and the office tried to handle it from there"
(claimant's Exhibit 3, examination before trial testimony of Allen Goldberg, p. 25). Mr. Goldberg's
examination before trial testimony was clear and unambiguous. When there was a refusal by the
inspector to sign the daily summaries, he submitted the forms to his employer's office for future
handling. To the extent Mr. Goldberg's affidavit contradicts his examination before trial testimony
it lacks credibility and may be disregarded (Cole v Tischler, 68 AD3d 1595 1596 [2009]; Valenti
v Exxon Mobile Corp. 50 AD3d 1382, 1384 [2008]).

Michael Betanzos, the Chief Inspector on the project, explained in an affidavit submitted in
support of the defendant's motion that at the beginning of the job, Mr. Goldberg requested that he
sign daily summaries (MURK 11 forms) for his employees' attendance and work on the job. Mr.
Betanzos "refused that request and informed him that it was his responsibility to maintain records
concerning the routine work performed by his employees on a daily basis and that MURK 11 forms
were only to be used for force account work . . . At no time did I refuse to sign any daily records
that were related to disputed work or extra work" (defendant's Exhibit R, affidavit of Michael
Betanzos, ¶¶ 2, 3). Mr. Goldberg disputes this assertion.

While claimant may have raised an issue of fact regarding whether or not Mr. Betanzos
refused to sign daily summaries related to force account work, this fact is immaterial. The daily
summaries were required to be signed by and submitted to Mr. Shaw, as the Engineer-in-Charge, not
Mr. Betanzos, an inspector (see defendant's Exhibit E, Standard Specifications, § 109-05 [C] [1],
p. 1-116). The defendant established that the daily force account summaries relating to both the
CMP Claim and the Median Barrier Claim were neither signed by the Engineer-in-Charge nor
delivered to the Engineer-in-Charge until almost one year after the completion of the project.
Moreover, claimant appears to concede that no force account summary of labor was delivered to the
Engineer-in-Charge within five calendar days after the end of each pay period as required by § 109-05 (C) (2), and that no force account summation was delivered within 10 calendar days of the
completion of the specific force account work as required by § 109-05 (C) (3).

Claimant next contends that § 109-05 (C) (4) of the Standard Specifications operates to
extend its time to submit the required reports. Claimant failed to note that this section was amended
to apply only to the submission of the final force account summation reports specified in subsection
C, paragraph 3:

4. In the event the contractor fails to deliver the required force account
documentation to the EIC within the time period specified in § 109-05,
subsection C, paragraph 3, of these General Specifications, and as a result
the Order-on-Contract for the force account work is not fully approved at the
date of final acceptance, the number of calendar days of the time period
between final acceptance and the issuance of this force account Order-on-Contract, attributable to the Contractor's late force account submissions will
extend the required payment data by an equal period of time (defendant's
Exhibit E, Standard Specifications, § 109-05 [C] [4], p. 1-117; defendant's
Exhibit C, Proposal, p. 47 [emphasis added]).

This subsection, as amended, clearly does not operate to relieve a contractor of its obligation
to submit timely force account reports and records as required by § 109-05 (C) (1) and (2).

Defendant points out that in addition to the claimant's failure to timely provide the Thruway
Authority with force account reports of work, labor and materials used in the performance of its
work, many of the records and documents necessary to verify the work have been lost or destroyed
(see defendant's Exhibit E, Standard Specifications, § 105-14, p. 1-74; defendant's Exhibit C, p. 74).
Claimant was required to maintain these records for six years, which it failed to do (defendant's
Exhibit C, p. 74). Claimant's belated notice and untimely submission of the force account reports,
together with its loss of foundational records to support the claim, constitute a waiver of its claims
for extra work relating to both the CMP and Median Barrier Claims.(5) Accordingly, defendant's
motion for summary judgement dismissing the first and second causes of action in the claim is
granted.

The Court reaches a different conclusion with respect to the Blasted Rock Claim, the third
cause of action asserted in the claim. It has been held that " 'in cases where the State is apprised of
the contractor's claim that extra work beyond the contract was being performed, the State has been
precluded from insisting upon strict compliance with the notice provisions' " (Whitmyer Brothers,
Inc. v State of New York, 63 AD2d 103, 107 [1978], quoting Amadeus, Inc. v State of New York,
36 AD2d 873, 874 [1971], lv denied 29 NY2d 486 [1971]). In such cases, there must be extensive
timely written correspondence or other contact between the contractor and the agency (Abax, Inc.
v Lehrer McGovern Bovis, Inc., 8 AD3d 92 [2004]; G. De Vincentis & Son Constr. v City of
Oneonta, 304 AD2d 1006 [2003]; Huff Enters. v Triborough Bridge & Tunnel Auth., 191 AD2d 314
[1993], lv denied 82 NY2d 655 [1993]). Here, it is undisputed that the defendant had timely notice
of the claim and that daily summaries of the work were timely provided. In the Court's view, the
submission of these daily summaries sufficiently apprised the defendant of the nature of the claim
so as to satisfy the underlying public policy of allowing the defendant to mitigate damages and avoid
the waste of public funds. Given claimant's timely submission of daily reports, and inasmuch as
defendant does not contend that it was prejudiced by the claimant's failure to submit the additional
reports required by § 109-05 (C) (2) and (3), the failure to provide reports compliant in every
technical respect with the contract should, under these circumstances, be excused (id.).

Lastly, to the extent claimant's counsel seeks costs and expenses for frivolous motion
practice by the defendant, the request is denied for the obvious reason that defendant largely
prevailed on its motion. Counsel is cautioned that such a request, if frivolous, may itself form the
basis for sanctions (22 NYCRR §§ 130-1.1,[c] [3]; 206.20).

Based on the foregoing, defendant's motion for summary judgment is granted to the extent
of dismissing the claimant's first and second causes of action and is otherwise denied. Claimant's
cross-motion is denied in its entirety.

1. Section 644 of the Standard Specifications was deleted and replaced as indicated in the Proposal
(defendant's Exhibit C) at pp. 114-125.

2. The contract defines "extra work" as "[a]n item of work not provided for in the contract as awarded but
found essential to the satisfactory completion of the contract within its intended scope" (defendant's Exhibit E, §
101-02, p. 1-5)

3. The Standard Specifications of January 2, 2002 (defendant's Exhibit E) were amended by the New York
State Thruway Authority Addendum No. TA (03) to delete the words "Regional Director", wherever it appears in §
105-14 [C] entitled Disputed Work and replace them with "Thruway Division Director" (see defendant's Exhibit C,
proposal, p. 27).